The government should put together the country’s best constitutional minds to evolve a code that is at best uniform only to the extent it is voluntarily accepted by citizens, writes N. KAVITHA RAMESHWAR.
The Delhi High Court’s (HC) order in the case of Satprakash Meena Vs. Alka Meena on 7 July, 2021, that “the hope expressed in Article 44 of the Constitution that the State shall secure for its citizens a Uniform Civil Code ought not to remain a mere hope” has rekindled the debate.
Loud voices of dissent against UCC
The idea of a UCC is controversial because of the proposal for uniformity in personal laws relating to marriage, divorce, maintenance, inheritance and succession.
On 23 November, 1948, when the Constituent Assembly debated whether a UCC applicable to all citizens irrespective of religion can be made part of the Fundamental Rights, several members expressed serious apprehensions about the inclusion of personal laws in the expression ‘civil code’.
Suggestions were made to introduce a proviso to Article 35 (then Article in the Draft Constitution on UCC) that “nothing in this Article shall affect the personal law of the citizen”. The other proviso put forth was that “provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law”.
It was pointed out that since personal laws of a citizen naturally flow from his/her religion and the fundamental concept of marriage is different in every religion, it was not possible to arrive at a uniform law and its application would be tyrannous and opposed to the fundamental right to freedom of religion.
Highlighting the views of minority communities, several members defended the position that imposition of a uniform code would mean effectively taking away the right to profess their religion as aspects like marriage, divorce and inheritance are interwoven with and thereby governed by their religious beliefs. If secularism is the foundation of India, bringing in such uniformity will lead to tyranny and rebellion instead of unity, the members contended.
Finally, the members decided to not include the UCC provision in the chapter on Fundamental Rights, but keep it intact in the Directive Principles of State Policy under Article 44, which reads: ‘State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India.”
The members had a tacit understanding that India was not ready for uniformity in personal laws and though a UCC may be desirable in future, it should be voluntary.
Unity does not come from uniformity
The question of whether India is still ready for a UCC lingers on more than 70 years after independence. The concepts of plurality and secularism have survived the systematic onslaught by the right-wing due to Indians, who cherish diversity and heterogeneity. The Indian concept of secularism—equal treatment of all religions by the State while celebrating the diversity of Indians—is quite different from the non-religious concept of western secularism.
One key question is which law governing the personal laws will be adopted as the standard for declaring uniformity when fundamental concepts underlying the institutions in every religion are disparate. It is time we realised that its plurality, not homogeneity, animates our secular democracy and that unity does not necessarily require uniformity.
According to the Law Commission’s report ‘Consultation Paper On Reform of Family Law, dated 31 August 2018: “The term secularism only has meaning if it can also assure that the expression of any form of difference, not just religious but also regional does not get subsumed under the louder voice of the majority…”
Codification is the key
A close perusal of the observations of the Delhi HC, exhorting the state to introduce a UCC at the earliest, and the Supreme Court (SC) in the cases of Shah Bano (AIR 1985 SC 945) and Jordon Diengdeh ((1985) 3 SCC 62) shows the courts sought to achieve codification of personal laws as applicable to the concerned parties rather than cherry-pick one set of personal laws and make it applicable universally to all irrespective of their customs, usage and practices.
The Delhi HC decision was about the applicability of the Hindu Marriage Act, 1955, to the Meena tribe. In the Shah Bano case, the apex court was essentially concerned about the rights of Muslim women regarding maintenance, including whether Section 125 of the Code of Criminal Procedure applies to all women, including Muslims, similarly placed. The SC’s Constitution Bench delivered a verdict in the affirmative. However, the Muslim Women (Protection of Rights on Divorce) Act, 1985, nullified the verdict.
The Jordon Diengdeh case related to the dissolution of marriage between a Khasi woman and a Sikh man. The central point of the observations made by courts time and again is essentially direction given to the legislature to codify the rules governing marriage, divorce, maintenance, succession and inheritance as applicable to different sections of people.
The Special Marriage Act, 1954, the Indian Divorce Act, 1869, the Indian Succession Act, 1925, and the Guardians and Wards Act, 1890, are all examples of secular legislation that govern people of different faiths willing to subject themselves to these laws.
In respect of certain cases where scheduled tribes or certain communities that still fall outside the purview of existing laws, the key lies in codifying customary practices and testing them on the anvil of the constitutional ideals of non-discrimination and equality rather than seeking to impose one uniform law that is bound to aggrieve cross-sections of society thereby making the whole process of selecting the standard for uniformity both unjust and arbitrary.
Law Commission Report, 2018
The Law Commission’s report goes into detail about the debates of the Constituent Assembly noting a complete lack of consensus on the introduction of a UCC and what a potential uniform code, if any, would entail for personal laws. After detailed deliberation, the Commission concluded that a UCC “is neither necessary nor desirable at this stage”.
On the contrary, the Commission said that codification of personal laws and doing away with specific rules and practices in different religions attract the rigour of constitutional promises, including the guarantee against gender discrimination and other practices which act as markers of ignorance and backwardness in society, need immediate attention rather than the imposition of a ‘one size fits all’ law.
Such uniformity would be tantamount to strangulating the secular ethos of our society and threaten national integrity thereby defeating its avowed ideal of unifying the nation.
The Commission also alluded to the example of Meghalaya and other Northeast states and tribal regions, where the matrilineal system is still prevalent in marriage and inheritance.
There is a great divergence of practice concerning marriage, divorce, and inheritance within the same religion and different religions and their sub-sects following different formalities in family law which they consider as an essential part of their religion. To meddle with the essential aspects of their religion would be interfering with their articles of faith, which cannot be permitted if we call ourselves secular.
Therefore, the key is not unifying but codifying the existing practices in tune with the constitutional promises.
Striking the right balance
Disregarding constitutional morality and society’s consent while introducing a UCC would be unfair. Putting together our best constitutional minds to evolve a code that is at best uniform only to the extent it is voluntarily accepted by citizens is the only solution.
BR Ambedkar’s words in the Constituent Assembly struck the right note of caution and balance: “It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it so that in the initial stage, the application of the Code may be purely voluntary.”
Therefore, it hardly needs to be underscored that considering the circumstances in which Article 44 came into being, the note of caution and dissent on one side and idealistic hope on the other will have to be balanced keeping in view the other supreme and solemn ideals envisaged in our Constitution.
Shashi Tharoor in his book The Battle of Belonging encapsulates the essence of civic nationalism with secular credentials in the words: “An India that denies itself to some of us could end up being denied to all of us.”
(N. Kavitha Rameshwar is an Advocate at the Madras High Court. The views expressed are personal.)